Poway loses Donovan decision; 70-page decision
written by federal judge

Gay Students Win $300,000 For School’s
"Deliberate Indifference" to Harassment
Leonard Link

Lambda Legal successfully defended a $300,000 verdict awarded by a San
Diego, California, Superior Court jury to two former students from Poway High
School who suffered severe anti-gay harassment that school officials failed to
redress. A unanimous three-judge panel of California’s 4th District Court of
Appeal found that the evidence introduced at trial was sufficient to support the
jury’s verdict, and that an erroneous jury instruction by the trial judge did not
require setting the verdict aside.  Donovan v. Poway Unified School District,
2008 Westlaw 4531580 (October 10, 2008).

Plaintiffs Megan Donovan and Joseph Ramelli encountered such frequent and
severe harassment while attending the school during the period 2000-2003,
going beyond vicious name-calling to threats of violence, assaults, and
property damage, that the school district did not even try to argue that the
harassment they suffered was not severe and pervasive. Indeed, the problem
was so severe, and the failure of school officials to act was so discouraging,
that both plaintiffs enrolled in a special program that allowed them to complete
their senior years through home study rather than have to face the
harassment for an additional year. The district contended that it should be
relieved of liability because its response did not constitute "deliberate
indifference" to the harassment.

The court found plenty of evidence to support the jury’s conclusion that the
officials were deliberately indifferent. There was evidence that both plaintiffs
had brought the problem to the attention of the principal, Scott Fisher, and the
assistant principal, Ed Giles, many times, that they had submitted formal
written complaints, but that the usual procedures of investigation and imposing
sanctions on offending students was apparently not followed. Things got no
better after they complained, not even temporarily.

The dispute on appeal went to the appropriate standard to be applied in
construing a California statute that prohibits sexual orientation discrimination in
schools that receive state funding, and whether individual students can sue for
damages when they suffer sexual orientation discrimination in the form of
harassment by fellow students. The plaintiffs had argued at trial that the
standard to be applied should be drawn by analogy from the Fair Employment
and Housing Code, which also bans sexual orientation discrimination, but the
defendants argued that the school should not be held liable unless the
"deliberate indifference" standard – a constitutional standard – was met. The
trial judge agreed with the plaintiffs, and charged the jury using the FEHC
standard on the statutory claim. However, the trial judge used the "deliberate
indifference" standard to charge on the constitutional equal protection claim.
The jury found for the plaintiffs on both claims.

The appeals court agreed with the defendants on the state law standard, but
that was a pyrrhic victory for them, because the jury also found that the school
officials had violated the students’ constitutional equal protection rights
through their deliberate indifference to the harassment. Thus, the court found,
even though it agreed with the defendants that the "deliberate indifference"
standard was the correct one for the state law claim, the jury’s finding on the
constitutional claim established that the standard had also been met for the
statutory claim. In order to subject the school district to liability under the
statutory claim, the court had to make the additional finding that the principal
and assistant principal were "appropriate officials" to deal with such situations,
whose actions should be legally binding on the school district. The court
concluded that the disciplinary authority and responsibility of those officials
were sufficient to meet this requirement.

The plaintiffs had also named the superintendent of schools as a defendant,
but he had been dismissed from the case, as the trial court quickly determined
that he played no individual role in responding to student harassment

On broader questions of liability, the court looked to Title IX of the federal
Secondary Education Amendments Act, which prohibits sex discrimination by
schools that receive federal funding. Federal courts have concluded that
students can bring sexual harassment claims under this statute, but it has not
yet been established that sexual orientation harassment claims would also be
covered by the federal statute. The state law has similar language to describe
the obligation of schools to prevent discrimination, but it also includes sexual
orientation as a specific category. The California court decided to apply
principles developed under Title IX to establish standards of proof and liability
under the state law, noting that the California law contained several categories
of discrimination not covered by the federal law, but sought to achieve similar

As to the right to sue for damages, the court looked to federal Title IX again,
and found that federal courts had found an implied right to sue for damages,
even though a literal reading of the statute might indicate that the failure of a
school district to prevent discrimination would subject it only to the possibility of
losing federal funding. The court was persuaded by federal decisions that had
concluded that limiting the remedy to possible loss of funding would not be an
effective way to achieve the statutory purpose.

There was also a dispute on appeal about the attorney fees awarded to the
plaintiffs, which amounted to more than $400,000, an amount greater than the
actual damages they were awarded. The court reviewed the time records of
Lambda’s attorneys working on the case and concluded that they worked out
to an hourly rate on the low side of reasonable and were appropriately
documented. In addition, due to the complexities of the case, the trial judge
had applied a small "multiplier" to the hourly rate, which the appeals court also
found to be appropriate within the discretion given to the courts to compensate
plaintiff attorneys in civil rights cases.

Lambda Legal Staff Attorney Brian Chase, based in the organization’s Western
Regional Office in Los Angeles, is the organization’s lead attorney on the case.
Lambda Legal’s Deputy Legal Director Hayley Gorenberg and co-counsel
Paula S. Rosenstein and Bridget J. Wilson of the law firm Rosenstein, Wilson &
Dean, P. L. C. in San Diego, join him on the case.

October 12, 2008

Donovan et al. v. Poway Unified School District et al.
Case Number D047199

Defendant-appellant-x/respondent: Poway Unified School District
Defendant-appellant-x/respondent: Fisher, Scott
Attorney: George Edson Murphy
Attorney: Jeffrey A. Morris  

Respondents and Cross-Appellants Donavan and Rameli

Plaintiff-respondent-x/appellant: Donovan, Megan
Attorney: F. Brian Chase
Attorney: Hayley Gorenberg
Attorney: Paula S. Rosenstein    
Attorney: Rosenstein, Paula S./RB/X-AOB
Party: Donovan, Megan / AOB
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4th Appellate District Division 1

Donovan et al. v. Poway
Unified School
District et al.

Case Number D047199
09/26/2005  Notice of appeal
lodged/received...by Poway Unified
School District...

10/12/2005  Notice to reporter to
Connie Ullery -
16,17,23,24,25,26/05; 8/18/05; 9/1/05;
Linda Burke -

10/18/2005  ...cross-appeal filed on
October 13, 2005, by Donovan et al.

...10/18/2005  Default notice
notified per rule 1(c).

11/02/2005  Order waiving filing fee
filed in
superior court on November 2, 2005, by
Donovan as to cross-appeal... by
as to

12/07/2005  Association of attorneys
for:  Atty Murphy for Appellants...

01/27/2006  Stipulation of extension of
filed to:  Attorney: Morris, Jeffrey / to
for AOB (60 days) Party: Poway Unified
School District...

03/23/2006  Granted - extension of
Attorney: Morris, Jeffrey /to April 26,
2006 for
AOB (30 days)
Party: Poway Unified School District

04/14/2006  Granted - extension of
Attorney: Morris, Jeffrey /to May 26, for
(30 days)
Party: Poway Unified School District

06/15/2006  Application filed.  To file
oversize brief

06/19/2006  Order on motion filed.  
Appellant and cross-respondent's
application to file their opening
brief in excess of 14,000 words is
Appellant's opening
brief is deemed filed this date.

BRIEF.  Attorney: Morris, Jeffrey / Due 45
days after filing of the record.
Party: Poway Unified School District /

07/11/2006  Change of address filed
Jeffrey A. Morris
(Old address) Stutz, Artiano, Shinoff &
401 West "A" Street, 15th Floor
San Diego CA 92101 7906

07/11/2006  application to appear pro
vice for respondent's and

07/13/2006  Association of attorneys
for:  Atty Chase for

07/19/2006  Stipulation of extension of
filed to:  Attorney: Rosenstein, Paula S./
October 2, 2006 for RB (60 days).
Party: Donovan, Megan

07/31/2006  Pro hac vice granted.  The
application of Respondents Megan
Donavan and Joseph Ramelli that
Hayley Gorenberg of Lambda Legal
Defense & Education
Fund, Inc., to be allowed to appear pro
vice is granted.

09/29/2006  Granted - extension of
Attorney: Rosenstein, Paula S./to
31, 2006 for RB (29 days) Party:

11/22/2006  Application filed.  
Application to
file combined respondents' brief and
opening brief in excess to rule 14 word

11/22/2006  Order filed.  Respondents'
cross-appellants' "Application to File
Respondents' Brief and
Opening Brief in Excess to
Rule 14 Word Limits" is GRANTED. The
combined respondents' and
cross-appellants' opening brief is
filed this date.

11/22/2006  RESPONDENT'S BRIEF.  
Attorney: Rosenstein, Paula
due 45 days after filing of
Party: Donovan, Megan / AOB

12/28/2006  Stipulation of extension of
filed to:  Attorney: Morris, Jeffrey / to
for ARB/XRB (60 days)
Party: Fisher, Scott

01/17/2007  Substitution of attorneys
for:  appellants and cross-repondents
substitute atty. George Murphy of
Murphy, Campbell, Guthrie & Alliston in
place and instead of George
Murphy of Farmer, Murphy, Smith &
(firm changed name).

03/14/2007  Application to file amicus
curiae brief filed by:  ACLU in support of
Respondents, X-Appellants
Add to POS

03/21/2007  Respondent notified
to rule 8.220(a)(2).  

03/29/2007  Order filed.  The
application of
American Civil Liberties Union of San
Diego & Imperial Counties, American
Liberties Union of Northern California, &
American Civil Liberties Union of
California to file an amicus curiae brief
behalf of respondents, cross-appellants
filed on March 14, 2007, will be
with the appeal. If the application is
granted, the court will specify a time in
which any party may file an answer.
Rules of Court, rule 8.220(c)(5).)

Attorney: Morris, Jeffrey/ ARB/X-RB due
days after the filing of
Party: Fisher, Scott / RB/X-AOB

04/03/2007  Application to file amicus
curiae brief filed by:  Education Legal
Alliance of the California School Boards
Association on behalf of
appellants/x-respondents. Add
party to POS

04/03/2007  Motion filed.  Motion for
Notice filed by Education Legal Alliance.
Oppo due 4/18

04/05/2007  Filed:  Supplemental POS
appellants' reply brief and

04/09/2007  Exhibit request rule 8.224
Appellant Poway Unified School District
Exhibit #'s 2,7,9,

04/10/2007  Received copy of document
filed in trial court.  Defendants' Poway
Unified School District notice of
designation of exhibits for transmission
reviewing court

04/11/2007  Exhibit request rule 8.224
Respondent Donovan Exhibit #'s

04/12/2007  Received:  Amended
notice designating exhibits for
transmission to court of appeal

04/19/2007  Order filed.  The
application of
Education Legal Alliance of the
School Boards Association to file an
amicus curiae brief on behalf of
appellants/cross-respondents filed on
3, 2007, will be considered with the
If the application is granted, the court
specify a time in which any party may
file an
answer. (Cal. Rules of Court, rule
8.200(c)(5).) The companion request for
judicial notice will be considered if the
application to file an amicus curiae
brief is

05/07/2007  Change of contact
filed for:  Alex M Cleghorn old address 1:
510 16th St 4FL new address 1: 39
Street old city: Oakland new city: San
Francisco old zip: 94612 new zip: 94111
old phone: 510-835-8045 new phone:
415-621-2493 old fax: 510-835-8045
fax: 415-255-8437

05/25/2007  Oral argument waiver
sent.  6/4

05/25/2007  CASE FULLY BRIEFED.  

06/01/2007  Request for oral argument
filed by:  aplt/x-respondent--15 min.
Atty Nicholson

06/04/2007  Request for oral argument
filed by:  respondent/x-aplt-15 min. (Atty

06/15/2007  Stipulation filed to:  Trial
Exhibits for use on appeal

06/15/2007  ***EXHIBITS LODGED BY:
******  Appellant Poway Unified by
stipulation 1 vol.

12/06/2007  Change of contact
information filed for:  
George Edson Murphy
old address 1: 3640 American River Dr

new address 1: 8801 Folsom Blvd.,
Ste. 230 old zip: 95864 new zip: 95826
fax: 916-484-3511
email: www.MurphyCampbell.com

02/01/2008   The court requests the
parties lodge within two weeks the
legislative histories of the following
statutes at issue in Donovan v. Poway
Unified School District et al. (D047199):
Ed. Code ' 200 (Stats. 1982, c. 1117, p.
4037, ' 1. Amended by Stats. 1998, c.
(A.B. 499), ' 7; Stats. 1999, c. 587 (A.B.
' 3; Stats. 2004, c. 700 (S.B. 1234), ' 2;
Stats. 2007, c. 569 (S.B. 777), ' 1.5); 2)
Code ' 201 (Formerly ' 43, added by
1994, c. 1198 (A.B. 2543), '2;
and amended by Stats. 1998, c. 914
499), ' 5); 3) Ed. Code ' 220 (Stats.
1982, c.
1117 (A.B. 3133), p. 4038, ' 1. Amended
Stats. 1998, c. 914 (A.B. 499), ' 17; Stats.
1999, c. 587 (A.B. 537), ' 4; Stats. 2004,
700 (S.B. 1234), ' 3; Stats. 2007, c. 569
(S.B. 777), ' 11); 4) Ed. Code ' 262.3
1988, c. 1514, ' 5. Amended by Stats.
c. 1372 (S.B. 1854), ' 9; Stats. 1992, c.
(A.B. 2359), ' 1; Stats. 1998, c. 914 (A.B.
499), ' 37); and 5) Ed. Code ' 262.4
1998, c. 914 (A.B. 499), ' 38).
Poway loses Donovan case; court says it
should have protected students
Attorneys Daniel Shinoff and Jeffery Morris are unhappy with
Donovan decision (blog post)
Blog posts re Donovan case
Poway Unifed blog posts
District protected teachers who
changed grades
Guajome Park Academy--Vista
Unified School District
has the same law firm as PUSD:
Dan Shinoff/Jack Sleeth of Stutz
Artiano Shinoff & Holtz)